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HomeMy WebLinkAbout1993-0406.Kozak.94-10-04 ~{J2U',.iy~.,.~.~r .- '" ( . I~ ( ,- ONTARIO EMPLOYES DE LA COURONNE ~ CROWN EMPLOYEES - DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE 1 . SETTLEMJ:NT .REGLEMENT "- BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO ONTARIO. MSG IZ8 TELEPHONE/TELEPHONE (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) MSG IZ8 FACSIMILE/TELECOPIE (416) 326- 1396 - 406/93 o.tg~rll( c"V.ro, IN THE MATTER OF AN ARBITRA~ION , Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Kozak) f Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer I Fisher Vice-Chairp~rson BEFORE: B. P. Klym Member F. Collict Member FOR THE G. Adams UNION Grievance Officer ontario Public Service Employees Union \ FOR THE D Strang EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING March 29, 1994 July 7, 1994 . ~ ( I - 2_1 This case involves the refusal of the Ministry to extend the Grievor's employment - \ beyond ag~ 65 pursuant to Section 17 of the Public Service Act, which reads as follows I 17 Every civil servant shall retire at the end of the month in which he or she attains the age of sixty-five years, but, where in the opinion of) the Commission' special circumstances exist and where the person's deputy minister so requests in writing the person may be reappointed by the lieutenant Governor in Council for a period not exceeding one year at a time until the end of the month in which he or she attains the age of seventy years. R.S 0 1980, c. 418, s. 17 The essential facts are not in dispute and can be contently listed as follows 1 The Grievor was employed with the Ministry from 1981 to 1990 as an unclassified COat Mimico Correction Centre. 2. From 1990 to February 25, 1993, the date he turned 65 years of age, the Grievor was employed as classified C 0.2 at Mimico Correction Centre 3 On December 2, 1992, the Grievor requested that his service be extended an additional one year 4 The person responsible for making the decision as to whether or not to extend the Grievor's employment was Mr R.Q Phillipson, Regional Manager, Metro Region. Unfortunately, he did not testify at the hearing so we do not know what criteria he used in making his decision. . -3- 5 However, we do know that Mr Phillipson was supplied with various information and recommendations from certain subordinates, including Mr Leithhead, Superintendent, Mr Haden, Superintendent (A) and Mr B Thompson, Senior Assistant Superintendent. r 6 One piece of information that we know Mr Phillipson had in his possession at the time he made his decision was that the Grievor had been absent from work on WCB for a total of 108 days in 1991 and 1992. Furthermore, botb Mr Leithhead a~d Mr Haden made specific reference to the Grievor's health (as evidenced by his WCB absences), as grounds for their recommendation not to extend the Gri.evor's appointment. The Union contends that the Employer's consideration of the Grievor's WCB absences is contrary to Article "A. 1 " of the Collective Agreement, whiC;;h reads in part as follows. / "There shall be no discrimination based on ha.ndicap as defined in Section 10(1) of the Ontario Human Rights Code" The relevant section of Section 1 O( 1) of the Code reads as follows "because of handicap'" means for the reason that the person has or has had, or is believed to have or have had, , ) /' . -4- (e) an injury or disability for which benefits were claimed or received under I the Workers Compensation Act. The Employer's position is two fold (a) There was no evidence to prove that the decision maker, Mr Phillipson, even considered the WCB absences when he made his decision. They admit that Mr Phillipson's subordinates considered it relevant, but there was no proof that Mr Phillipson himself considered it relevant. (b) Even if Mr Phillipson did consider the WCB absences, the Grievor's remedy is to file a complaint with the Ontario Human Rights Commission as the GSB has no jurisdiction to entertain such a grievance Let us deal with the "no evidence" issue first. Mr Phillipson was not called as a witness by either party, which is unfortunate as he should have been called by one of the parties The Employer should have called him as he was the decision maker The Union, once they realized that the EmplQyer was not calling Mr Phillipson, could have called him themselves l In any event, he was not called and we are left to decide this issue based on the evidence we heard and the natural inferences we can draw from those facts. Besides the fact that Mr Leithhead, Mr Haden and Mr Thompson (who all played roles in . - 5 - advising Mr Phillipson) all thought the WCB absences were highly relevant, we were provided with a copy of the relevant extract from the "Ontario Manual of Administration" On the topic of overage appointments, the policy states in part as follows "Overall appointment does not confer a right upon the appointee for employment for a specific period. The employee may be retained if' - his/her health is and remains satisfactory; and - he/she is able to carry out all the duties of the position. Prolonged or frequent illness ought to lead to prompt retirement regardless of the - balance of extension outstanding - amount of sick leave including both the Short Term Sickness Plan and accumulated sick leave credits." The policy does not distinguish between WCB and non-WCB illnesses Thus the average reader of this policy would assume that it was proper to consider both types of absences Based on these facts, we are quite comfortable in drawing the reasonable inference that it was more likely than not that Mr Phillipson did in fact consi~er the > I WeB absences as one of the reasons he denied the Grievor an extension. The Employer d,d not dispute the Union's contention that a consideration of the Grievor's WCB absences was contrary to the Code. We are thus left with the jurisdictional argument. . I -6- The Employer's position is that the power exercised under Section 17 of the Public Service Act is that of appointment or reappointment. SectIon 18(1 )(a) of the /'> Crown Employees Collective Bargaining Act makes it clear that "appointment" is the exclusive function of the employer and "such matters will not be the subject of collective bargaining nor come within the jurisdiction of the board" Furthermore, Section 17 of the Public Service Act prevails over a contrary provision in the collective agreement. It is only reg~lations under the Public Service Act which are subservient to collective agreements (see Section 19(3) of Public Service Act) The Union's positionJwas that an infringement of Article "A. 1 " stands on its own and ~hus it matters not that the power being reviewed is a statutory one In other words, once the Ministry decides that they will consider a case for overage extension, they must do it in such a way as to not offend Article "A. 1 " . ( ) -7- Decision I "- The first time the issue of arbitrability of an overage extension arose was in 1 Keire 111/83 (E B Jo/litte) where it was found not to be arbitrable This was followed in Cole 1634/84 (Delisle) who followed the reasoning in Keire The next case where this issue was raised was Glummett 1656190 (Keller) In I' this case, the Union raised the issue of lack of procedural fairness The Employer responded by denying the lack of procedural fairness and raising the same I jurisdictional issue as in the present case The Board went on to find that there was procedural unfairness and then, apparently in reference to the Employer's jurisdictional argument said as follows: ) "As a result of this conclusion, we need not deal with the other arguments raised by the parties!' I The Board went on to award 1 year's lost wages. r It is difficult to understand hoW the Board could logically choose not to address the jurisdictional issue and at the same time find in favour of the Union. In any event, as this case did not deal with the jurisdictional issue, it is of absolutely no assistance to us in terms of precedential value '\ / . -- -8- In Hendersolt 2188/90 (LoW), another overage case, the j!Jrisdictional issue was not raised and thus not dealt with by the Board. It therefore is no a~sistance to us in this case Therefore, the only relevant GSB jurisprudence on this issue clearly favours the Employer However, both Keire and Cole were prior to the introduction of Article "A 1 " into the Collective Agreement and therefore the present situation may be gifferent. The Employer does not dispute the Union's contention that the following passage from Adamson 2669/91 correctly states the law with regard to whether or not a violation of Article A 1 itself can form the basis of a valid grievance The Employer in I, the Adamson case took the position that Article A 1 only defined what kinds of discrimination were forbidden in the administration of the Collective Agreement. It contended that Article "A 1" did not stand on its own, thus a breach of that article was not capable of giving rise to a valid grievance The Board rejected that argument as set out below' (pgs 4&5) (' I " Having considered at length the wording of Article A.1 of 'the Collective Agreement in light of the usual rules of construction of contractual provisions, we conclude that the preliminary objection to jurisdiction must be dismissed. There does not appear to be any basis for reading into this provision the limitations suggested by the Ministry ) Article A.1 does not say "There shall be no discrimination practised in the administration of other provisions of this'Collective Agreement by reason of [the prohibited grounds], it states, "There shall be no discrimination practised by I I . I ! -9- reason of [the prohibited grounds]" It makes a blanket statement, and there does not appear to be any rule of construction that would cause us to conclude " I that it says less than what it purports to say , Moreover, Article A.1 is not merely definitional in nature; it does not begin with words such as "Discrimination is defined as" It is directory in nature, stating that "There shall be no discrimination" Accordingly, we are led to conclude that Article A.1 of the Collective Agreement stands on its own and any breach of its provisions is capable of forming the basis of a valid grievance The preliminary objection cannot be sustained and must be dismissed." In keeping with this decision, the cases of Pitirre and Messon are important. ( In Pitirre 1685/92 et al. (Kaplan), the case involved an allegation that the I Grievor's Article A.1 rights were infringed when the Employer refused to renew his I contract because he ,would not go along with the Employer's inadequate attempt to "- accommodate his handicap The Board held that it had jurisdiction to hear the case as I the allegation revolved around whether or not his Article A.1 rights had been infringed "- while he was still an unclassified employee The Board was influenced by the fact that it seemed clear that but for the Grievor's refusal of the offered accommodation, his contract would have been renewed. Similarly in Messon 16/93 et al (Gray), the issue involved an allegation that the Grievor's contract was not renewed based in part on the Grievor's past WeB absences The Board followed Pitirre and decided it was arbitrable I J r '\ I -10- I Thus in both Pitirre and Messon, the Board accepted jurisdiction on the basis that the alleged Article "A.1 II violation took place while the Grievor was an employee j and member of the bargaining unit. Similarly in this case, the improper consideration of the Grievor's WeB record took place prior to his retirement, and it was orally communicated to him by Mr Thompson before his actual retirement date ~ In Pitirre, the Board was careful to distinguish this from the situation of a simple non-renewal The following extracts from Pitirre, as quoted in Messon, illustrate the scope 'of the Board's decision. \ While it is undoubtedly the case that unclassified employees, at the conclusion of their contract, have no new Collective Agreement rights, it cannot, in our view be correct that the conclusion of an unclassified employee's contract of employment extinguishes rights which arose during the period of employment when the employee was covered by the Collective Agreement. Article 3 of the Collective Agreement sets out various entitlements of unclassified employees. What if, for instance, an unclassified employee was not paid overtime on the last day of his or her employment. According to Mr Benedict, the next day that person would not be an employee but would be a member of the public with no right to grieve and the Board would be without jurisdiction to hear that grievance In our view where a Collective Agreement entitlement arises during the course of employment, in some circumstances the \ individual~may remain an employee for the purpose of filing a grievance after the employment relationship has come to an end Whatever the decision in Parry stands for, it is not the proposition that Collective Agreement and statutory rights of employees that arise during the course of employment are in every '\ case extinguished at its conclusion. To reach this result would be to deny employees in some cases, such as this one, the benefit of the Cqllective Agreement. In this case the grievor's Article A rights were allegedly infringed while he was an employee and it is on this basis that we are taking jurisdiction with respect to his case we are not granting any new rights to unclassified employees at the end of their terms of employment. Rather, all we are doing is recognizing the necessarily continuing nature of some Collective Agreement rights including Article A rights which arise while an individual is an employee. r r . I I - 11 - "- Accordingly, the line of cases relied on by the employer about the status of former unclassified employees are of no assistance to us in this case Likewise, the ore-Beresford cases are of little value for they predate the existence of Article A. While panels of this Board were once prepared to find that a proven violation of the Ontario Human Riahts Code was inarbitrable the existence of \ Article A changes that situation for its incorporation into the Collective Agreement means that its alleged violation is properly within the jurisdiction of the Board. Although there is an obvious difference between a non-renewal of a contract and '\ a refusal to extend employment beyond age 65, the similarities are worth noting \ (a) -The argument that they are beyond the scope of this Board flows from the same "appointment" power in Section 18(1 )(a) of CECBA. (b) The power to renew a contract or extend employment beyond age 65 both flow from the statutory provisions of the Public Service Act. Thus if non-renewals are subject to a attack via Article "A. 1 ", why s~ould \. refusals to provide overage extensions not be provided with the sam~ protection? We can think of no valid reason for making a distinction between the two on jurisdictional grounds The difference may well be in the remedy The cases of non-renewal tend to be I fairly cut and dry in that the evidence is quite clear that but for the infringement of ) - . - ;; '\ f - 12- Article A.1, the contract would have been renewed. However, in the overage cases, even where there may have been an improper consideration of a prohibited groun_d, _ that does not necessarily mean that the decision itself would have been any different had the prohibited ground not been considered. This is because the Act speaks of the existence of "special circumstances" as a prerequisi~e to the issue being considered by the Lieutenant Governor in Council We therefore find that the Board does have jurisdiction to hear this case as it is based on an allegation of the infringement of Article A. 1 We further find that Articl.e A.1 was violated in that the Employer improperly considered the GriElvor's WCB record in making their decision not to grant an overage extension. The remedy however should not be in the nature of an immediate monetary payment as it is not clear at all if, but for the improper consideration of the WCB record, the Grievor would have received the extension anyways The better remedy is a reconsideration of the issue, on the following terms and conditions. (a) The person making the decision on behalf of the Deputy Minister shall not be Mr Phillipson \ \ . I ~~ . ~ -13 - (b) The Grievor is to submit in writrng his reasons for special circumstances to the Employer within 45 days of the release date of this decision. (c) The decision maker is not to consider the Grievor~s WeB absences nor any other prohibited ground under Article A.1 when he or she decides the issue of whether or not to grant the overage extension. (d) To the extent possible, both the Grievor and the Ministry decis,ion maker are to consider the circumstances- as they were at the time of the original request. In other I words if the Grievor suffered a disabilitating stroke in June 1994, this' could not be a I ground to refuse the overage extension. Similarly, if in February 1993 there was a need for C 0 s but that need no longer existed in July 1994, then the extension could not be denied on the basis of no present need. (e) The request for overage to be considered will only be based on a one year extension from March 1, 1993 to February 28, 1994 - (f) The Ministry decision-maker is to give his or her decision in writing within 45 days of receipt of the Grievor's written reasons If the -request is denied, the Ministry decision-maker is to give full reasons for his or her decision '- . ---- p- " ~: I I - 14- (g) As a point of clarification, it is quite appropriate for the, Ministry to consider the Grievor's actual health condition as of February 28, 1993 insofar as it may be a valid predictor of future attendance However, this of course is subject to the continuing obligation of the Employer to accommodate the Grievor if his medical condition constitutes a handicap under the Code (h) If the Ministry decision-maker determines that the extension should_have been given, the Grievor shall be awarded compensation for the income lost in the one year I " period, subject to reduction for any income earned in mitigation. (i) This panel of the Board is to remain seized with respect to all matters of interpretation and implementation of this decision, including any argument that a reconsidered denial was improper Dated at Toronto this 4th day of 1994 BARRY B FISHER, Vice-Chairperson ;JtL-Ur~ 9 d PETER Kl YM, Union Member /.~d FRED COlllCT, Employer Member